April 26, 2005

Bush Nominee's Father Led Last Filibuster of Supreme Court Nominee

By DHinMI

It looks like the Senate Democrats really snookered Bill Frist. Yesterday there was talk of a potential "compromise" that would have allowed votes on two of Bush's judicial nominees. Even if Frist had consented to the deal, it wouldn't have been much of a compromise by the Democrats, but now they get to look like they're being reasonable and the Republicans are extremists. Furthermore, if the compromise would have gone through, it would have shed more light on the hypocrisy of the Republican arguments against the filibuster, because one of the nominees is the son of the Republican Senator who used a filibuster to derail the confirmation of a Chief Justice of the United States Supreme Court.

To understand why Richard Griffin, David McKeague and Henry Saad haven't been confirmed to the 6th Circuit Court of Appeals, you have to go back to 1997. That's when Bill Clinton, at the beginning his second term, nominated Michigan Court of Appeals Judge Helene White to the 6th Circuit. At the time the Senate still used "blue slips," which would be given to the Senators to fill out and return as a sort of approval for nominees from their state. Democrat Carl Levin returned his blue slip for White, but then-Republican Senator Spencer Abraham held his, thus denying White a hearing before the Judiciary committee. In 1999 Clinton nominated Kathleen McCree-Lewis to another opening on the 6th Circuit, and Abraham again held his blue slip. Finally, in early 2000, Abraham returned his blue slips for both White and McCree-Lewis, but by that point committee chair Orrin Hatch was obstructing appointments, and neither was ever granted a hearing. Their nominations expired when George W. Bush became president.

The Senate, in 2001, abolished the practice of using blue slips on judicial appointments. Eventually Bush nominated two Michigan jurists for the openings White and McCree-Lewis were to fill, and a third jurist to yet another opening. But Levin and his new colleague Debbie Stabenow (who defeated Abraham in 2000) were determined to get White and McCree-Lewis the hearing they were denied, and have since held up the appointments of Griffin, McKeague and Saad by preventing cloture. Griffin and McKeague are conservatives, and neither would be good on the bench. But neither is a total whack-job like Priscilla Owen or a complete corporate tool like William Myers. (Saad is more of a doctrinaire Federalist Society commissar.) So the "offer" made to Frist concerning the 6th District nominees--that the Dems would let McKeague and Griffin be approved as long as Saad was replaced with White or McCree-Lewis--wasn't much of a compromise by Democrats. In fact, it would have been quite a victory, in effect leading to the confirmation of a Clinton appointee more than 4 years after the end of his term.

As I said, Richard Griffin is a fairly standard conservative idealogue, but not crazy like Owen. Furthermore, he's a lackluster thinker, so he's unlikely to write much that would become important precedent. But Griffin is a symbolic figure in the broader fight on the filibuster, because in 1968 his father, Republican Senator Robert Griffin of Michigan, used the filibuster to scuttle Lyndon Johnson's nomination of Justice Abe Fortas to Chief Justice of the Supreme Court.

For our history lesson, let's look at this from American Enterprise Institute fellow and Congressional scholar Norm Ornstein:

Time for a history lesson, boys and girls.
The lesson is about the filibuster, and in particular about the
filibuster against the nomination of Abe Fortas to be chief justice of
the Supreme Court in 1968. The lesson is precipitated by Sen. Orrin
Hatch’s (R-Utah) letter to Roll Call last Monday.

First,
let us look at the basics of what happened in 1968. On June 13 that
year, Chief Justice Earl Warren informed President Lyndon Johnson of
his intention to retire, subject to the confirmation of his successor.
Two weeks later, LBJ nominated Associate Justice Abe Fortas for the
post, also nominating Judge Homer Thornberry of Texas to fill Fortas’
seat on the court. Before his confirmation to the court earlier in
Johnson’s presidency, Fortas had been one of Johnson’s closest friends
and advisers.

As soon as the nomination was made, sharp opposition arose, driven
especially by Sen. Robert Griffin (R-Mich). He challenged the legality
of a nomination when there was no vacancy, and accused Johnson of
“cronyism.” Other Republicans joined in the effort, which also was
driven by the fact that the vacancy occurred late in the presidential
term. Many Republicans saw a benefit in waiting until after the
election to confirm a new justice, on the hope that GOP nominee Richard
Nixon would win in November.

Whatever the motives, as hearings on the Fortas nomination proceeded
during the summer, more questions arose about his ethics and his
continued involvement, while on the court, in White House political
matters. Other opposition, including from several Southern Democrats,
built because of Fortas’s left-of-center ideology. But at the time, it
was clear that Fortas had majority support in the Democratic Senate,
and it was equally clear that Griffin, to prevail, would filibuster.

During the hearings, Griffin was challenged by Democrat George
Smathers of Florida on his intention to filibuster the nomination,
saying it would prevent the Senate from fulfilling its constitutional
advise-and-consent duties. Griffin angrily responded that presidents
did not have the sole authority in this area. “He’s only got half the
power, he said. “We’ve got the other half and it’s time we asserted
ourselves.”

When the nomination came up on the Senate floor in late September, a
filibuster ensued. After five days of extended debate, there was a vote
on a cloture motion. It failed, 45-43 with 59 votes (two-thirds of
those present and voting) needed to pass it. The next day, Fortas
withdrew. Johnson termed the behavior of the Senate “tragic.”

At its heart, Hatch’s recent letter suggested a sharp difference
between how Fortas was treated (primarily by Republicans) and how
appeals court nominees have been treated by Democrats in the past two
years--all part of an effort to boost the idea of declaring filibusters
against judicial nominees unconstitutional on their face.

The argument that Hatch makes, first articulated by former White
House Counsel C. Boyden Gray, is essentially that there was no real
filibuster against Fortas, because he didn’t have the votes to get
confirmed in the end. I must confess, I find the distinction between
“majority-supported filibusters” and “non-majority-supported
filibusters” to be, shall we say, a strain.

The logic that Gray has used--trying to suggest that in the public
statements of Senators on Fortas, a minority offered support--is
flawed. Why filibuster if you have the votes to block a nomination?
Besides, I am waiting for someone to show me where in Rule XXII it
makes any distinction between filibusters that have majority support or
lack it.

The delay caused by the filibuster in 1968 did allow time for
opposition to Fortas to build, to a point where Johnson withdrew the
nomination. But if Republicans were confident that Fortas would fail on
a vote, they would have allowed the vote. And of course, to argue that
a filibuster is not a filibuster--or to argue that one is legitimate
when others are not because there was not a majority for the nominee in
the first place--is like arguing, “Yes, I shot him, but I can’t be
charged with murder because he would have died of cancer anyhow.”

In any event, the best way to interpret the actions of Senators in
1968 is to look at what they said then--in particular, what was said by
Griffin, who was not just some crazy maverick but a card-carrying
member of the Republican Senate establishment (and subsequently
Republican Whip in the Senate). So here are a few quotes from Griffin
on the Senate floor from that September debate:

“It is important to realize that it has not
been unusual for the Senate to indicate its lack of approval for a
nomination by just making sure that it never came to a vote on the
merits. As I said, 21 nominations to the Court have failed to win
Senate approval. But only nine of that number were rejected on a
direct, up-and-down vote. . . .

“As more senior members of this body know so well, the Senate works
its will in various ways. In the situation confronting us now, there
are good and sufficient reasons for refusing to take up the nomination.
. . .

“If ever there is a time when all Senators should be extremely
reluctant to shut off debate, it is when the Senate debates a Supreme
Court nomination. If Congress makes a mistake in the enactment of
legislation, it can always return to the subject matter and correct the
error at a later date. But when a lifetime appointment to the Supreme
Court is confirmed by the Senate, the nominee is not answerable
thereafter to the Senate or to the people, and an error cannot be
easily remedied. . . .

“Whatever one’s view may be concerning the practical effect of
Senate rules with respect to the enactment of legislation, there are
strong reasons for commending them in the case of a nomination to the
Supreme Court

[Ornstein criticized Gray's logic, but there was a deeper problem with Gray's argument, one discovered by Kagro X: it was dishonest.]

Griffin's reasons for opposing Fortas weren't all that principled; at heart, he and the Senators who supported his filibuster--mostly Republicans, with a smattering of conservative Southern Democrats--opposed Fortas because he was too liberal, and because they figured (correctly) that they could bottle things up long enough that the appointment wouldn't need to be filled until after Johnson's term ended. Fortas remained an associate justice for a while, and Richard Nixon nominated Warren Burger to replace Earl Warren as Chief Justice. But his statements, as cited by Ornstein, make it clear that Robert Griffin strongly supported the filibuster. How appropriate that the Republicans like C. Boyden Gray are now forced to twist the historical record to try to convince people that the last Senator to lead a filibuster really didn't filibuster Abe Fortas, and how appropriate that Robert Griffin's own words and actions are now being used to justify denying a lifetime judicial appointment to his own son.

One final note. In 1978, incumbent Republican Senator Robert Griffin lost his bid for reelection when he was defeated by the president of the Detroit City Council. The name of the Democratic candidate who defeated Robert Griffin? Carl Levin.

Comments

Thanks for the history. I knew the vague outlines, but not the details.

Norm Ornstein has been such a voice of reason for the last decade or so that you presume, despite his AEI/GOP identification, he's likely voted for some Dem presidential candidates over tghe period. Still, to lose him to this extent (I heard some of his presentation on C-SPAN last night, and it was virulently anti-GOP) shows what Republicans are doing to long-time adherents: forcing them to seek greener pastures out of sheer exasperation.

I must admit I had the teeniest glimmer of doubt about Dem resolve yesterday, especially when I read Biden's "we can confirm four or five of them" quote in the Times. Why give anything, I screamed, when you're killing them in the polls? But you're correct: Reids's offer was barely anything for the Pubs and lots for our side, which would either win the day, or (as happened) be rejected by in-hock-to-Christian-right Frist, enabling Dems to one more time be seen as taking the reasonable side of the argument.

I'm about ready to surrender power of attorney to Reid. He's just an extraordinary leader to date.

Apparently most people who write about politics from the left side of the spectrum have never played cards, because bluffing is obviously a foreign concept too difficult for their literal minds to grasp.

And there is a bit to Levin's demand that Saad be pulled. Saad sent an email to a freind, saying that he would get revenge on stabenow and others once he was on the 6th. He also used some impolite terms to describe the junior senator among others.

Unfortunately for Saad, he hit "reply all" rather than "reply", and Sen Stabenow (or one of her friends/staff etc) got a copy of the email.

Yeah, that's the tip of the iceberg with Saad. He's one of those cases that on top of being bad ideologically, on a personal level he's also a jerk.

I have it on fairly good authority that Saad's problems go much deeper than simply being a jerk. It's likely that unless a deal is struck whereby he skates in pursuant to the deal, he likely won't be seriously pushed for this slot. The GOP doesn't want much of a hearing on him. More likely, the deal will involve McKeague and current Michigan Supreme Court Justice Steven Markman.

Kagro and DH - yeah, John Nichols missed this pretty badly in his Nation article, but I’ll cut him some slack for one main reason: when Dems lose (you’ll notice we’ve been losing a bit more than winning lately), it’s largely because we don't fight hard enough or seem unsure about what we stand for (or at least that's how we're perceived).

It's a natural quandary for the left since we're the ones who do nuance, who understand that most issues are complex, containing shades of gray and all that. The very definition of "liberal" (and that's what we are, however much many of us have been shamed into naming ourselves otherwise) is grounded in key concepts like tolerance, open-mindedness, pluralism, a willingness to compromise, and an understanding that we may just be wrong about a particular thing (you know, change our outlook when the facts demand it). We prefer to win via reasoned persuasion instead of irrational attack. We're the proud descendants (and defenders) of the Age of Enlightenment.

Of course the right, by nature, is far more simplistic. It's "Us or Them", good vs. evil, black and white, give no quarter. Don't confuse them with the facts (no WMD, anyone?) -- they know what they know. The right is quite amenable to marching in lockstep; they're authoritarian, tradionalist, hierarchical, monolithic, and given to rallying around a "hero" or "great leader". Attack mode and win at all costs is more their style than rational argument. It's no wonder that Republican legislators (state and federal) vote as a group (and allow themselves to be whipped into order) much more often than Democrats, for instance.

Obviously, whole books (hell, whole library sections) have been written on what makes "left" and "right". This is just my poor and inadequate take in a nutshell. My point is: which side will find more intrinsic difficulty in either taking or at least appearing to take a strong stand? That's right, we will.

For example, it isn't just some "Viet Nam War syndrome" that makes the Democrats appear weak on national security. In actuality, we're better at it than the Republicans (whose watch did 9/11 happen under?), but we have a hard time playing cowboy and saying silly things like "your either with us or against us", or "smoke 'em out of their holes". For a TV and movie generation, we just don't look the part.

We know that fighting terrorism is much more a matter of international law enforcement (with some military participation) and diplomacy and arms control and helping the underdeveloped world modernize. We understand terrorism is a real threat, but not an existential one. The right believes we're fighting World War III (or is it IV?) against hordes of Islamofascists, and that a global American Empire propped up by military legions is essential for our very survival. They ridiculously conflate the invasion and occupation of Iraq with this supposed War on Terror, while we (mostly) realize what a terrible, wasteful, unnecessary horror our Iraq adventure actually is, having nothing to do with any War on Terror (except helping to create more terrorists). So who do you suppose "looks" stronger and more resolute? The ones who'll take the country to war on a bunch of fearmongering lies in order to get re-elected, or the ones who think maybe that's not the best way to go? You guessed it.

And sometimes, we really don't fight when we should. He may not have won in November anyway, but I believe Kerry was done for sure last August when he did not fight hard and fast against the Swift Boat Liars. He made the typical liberal assumption that facts and reason would prevail, without him having to make a big fuss about it. Worst mistake of his career.

Take Joe Lieberman (please!) and all the other "moral values" suck-ups on our side (Holy Joe votes our way most often, but that's not the way he appears in the newspaper or on the TV). Combined with the liberal predilection for accommodation, they have made it very difficult for the Democrats at the national level to be primarily the party of "no". Which, with the insane fascists on the other side currently in charge, we must be. It's just that it doesn't come natural to us.

That's what John Nichols is on about, and I don't blame him. Though (as you rightly pointed out) he totally missed the brilliant bluff by mild-mannered, anti-abortion (cringe!) Harry Reid, Nichols' intent is to hold the national Dems feet to the fire. He is right to do so, even if we'd all love to play poker with him. Especially on the domestic front, we need to look and act like we-know-where-you-stand fighters every chance we get.